Thirty-five years is a long time, but it seems like it was just yesterday. I began doing mediations as part of the first "roster of volunteer attorneys," which was created in the early days of the Federal Bar Association.
I followed that with many judicial settlement conferences while I was a King County Superior Court judge. I left that work in 1990 to begin a career as a private mediator and arbitrator, and am still going strong. Last summer, I successfully mediated the dispute between the taxi cab industry and ride service providers.
Mediation is a very important part of a successful legal career in litigation and the attorneys in this state are very good at it. However, over the years, I have noticed several recurring mistakes. Having seen lawyers make these mistakes for 35 years, I feel it's okay for me to just tell it like it is and give you guys a list of DON'TS.
Don't oversell the client's case to the client. No case gets better than the first day it walks into your office. Be sure to temper your early assessment of the value of your client's case until you get an idea of the facts from the other side's perspective.
Many times in mediation, especially with personal injury cases, the clients are frustrated when they are confronted with a settlement that is far less than the potential recovery they were advised of when their attorney was retained.
Don't represent multiple plaintiffs in personal injury actions without providing "informed consent." RPC 1.8 (g) provides that a lawyer "who represents two or more clients shall not participate in making an aggregate settlement of the claims" unless each client gives informed consent in writing. It is surprising how many lawyers come to mediation representing multiple clients injured in the same tort without any objective way to allocate a settlement and without obtaining the clients' prior informed consent.
The best practice is to either obtain the clients' informed consent prior to accepting the representation or just represent the client with the best case and refer the other injured party to your law school classmate.
Don't participate in mediation without all the stakeholders present. Obviously, your client should be in attendance along with all decision makers. However, don't forget to at least inform lien holders of the mediation and invite their participation either in person or on the phone.
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